Judicial Vacancies Skyrocket During Obama’s 1st Term

As President Barack Obama winds down his first term in office, he is facing 83 district and circuit court judicial vacancies – almost 30 more than existed when he took office. Of the 83 vacancies, 33 are considered "judicial emergencies" because of the volume of cases per judge in those areas. Obama also has seen far fewer confirmed nominees than his two predecessors by the end of their first terms. And while the confirmation process has slowed, Obama has not put forward as many nominees as his predecessors. The Huffington Post looks at the situation.

Today's Opinions

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We granted review in this divorce case to determine whether the Court of Appeals erred by reversing the trial court’s denial of transitional alimony. The trial court divided the parties’ real and personal property, awarded custody of their children to the wife, and declined to award spousal support to the husband. The Court of Appeals affirmed the trial court’s custody determination and, except for the trial court’s refusal to divide the wife’s postseparation income, upheld the classification and division of the marital estate. However, the Court of Appeals reversed the trial court’s judgment regarding spousal support and ordered the wife to pay the husband transitional alimony in the amount of $2000 per month for thirtysix months. We conclude that the trial court did not abuse its discretion in declining to award the husband transitional alimony. Accordingly, we reverse that portion of the Court of Appeals’ judgment awarding the husband transitional alimony but affirm in all other respects the intermediate appellate court’s decision.

TN Court of Appeals

Robert E. Cooper, Jr., Attorney General and Reporter, William Young, Solicitor General, and Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Board of Probation and Parole.

Judge: MCCLARTY

This appeal involves the petitioner’s efforts to be paroled. After the Tennessee Board of Probation and Parole declined to recommend the petitioner for parole, he filed a pro se petition for a writ of certiorari. The Board filed a motion to dismiss. The trial court granted the Board’s motion, and the petitioner appeals. We affirm.

Paul A. Gontarek and Anna E. Valentine, Nashville, Tennessee, for the appellee, Equitable Trust Company, Trustee of the James M. Cannon Family Trust.

Judge: SUSANO

The plaintiff filed this action alleging that the defendant killed the latter’s husband thereby forfeiting any rights she had under a trust the husband had created. After the complaint was filed, the defendant was convicted of first degree murder in the death of her husband. The plaintiff filed a motion for summary judgment supported by the judgment of conviction and other documents. The defendant filed an affidavit denying any responsibility for her husband’s death. While the motion for summary judgment was pending, the defendant filed a motion asking the trial judge to recuse himself. The trial court denied the motion to recuse. It then granted the motion for summary judgment. We affirm the trial court’s decision to deny the motion to recuse but vacate the order granting the motion for summary judgment.

George A. Dean, Nashville, Tennessee for the Appellees, Randall and Margaret Mooneyhan.

Judge: DINKINS

Property owners’ permit to place a mobile home on their property was revoked by the county building commissioner on the grounds that the property on which the home was to be located did not meet the minimum lot size requirement in the zoning ordinance; on appeal to the Board of Zoning Appeals, the property owners were granted a variance. The County filed a petition in Chancery Court seeking certiorari review of the grant of the variance, naming the Board of Zoning Appeals and property owners as defendants. After a hearing, the trial dismissed the petition; the court denied the property owners’ request for attorney fees incurred in connection with the Board of Zoning Appeals and certiorari proceedings. We hold that the property owners are entitled to an award of attorney fees pursuant to 42 U.S.C. § 1988.

This appeal concerns a termination of parental rights. Sean and Amber G. (“the Petitioners”) filed a petition for adoption and termination of parental rights with respect to Hope A.P. (“the Child”) against Jessica N. (“Mother”) in the Circuit Court for Greene County (“the Trial Court”). The petition alleged that Mother willfully failed to visit or support the Child in the four month period immediately preceding the filing of the petition. The Trial Court terminated Mother’s parental rights to the Child after finding that Mother’s willful failure to support had been proven by clear and convincing evidence, and that clear and convincing evidence showed that it was in the Child’s best interest for Mother’s parental rights to be terminated. Mother appeals to this Court. We affirm.

This is the second appeal in this divorce case. During the parties’ ten-year marriage, they had two children. The husband served in the military, stationed in several different places. Eventually the family moved to Tennessee, where the wife worked part-time and took care of the children while the husband was deployed. Just after the husband returned from his deployment, the wife filed a petition for divorce, and the husband filed a cross-petition. The parties reached an agreement on property issues, but no others. After a trial, the trial court entered a final decree, found the husband at fault for the demise of the marriage, and granted the wife a divorce. The final decree designated the wife as the children’s primary residential parent, awarded the wife rehabilitative alimony, and divided the marital estate in accordance with the parties’ agreement. The husband filed the first appeal. The appellate court dismissed the first appeal for lack of a final order and remanded the case for resolution of several issues. After a post-remand hearing, the trial court entered an order mostly reaffirming its initial decision. However, in light of the wife’s post-remand admission of infidelity during the marriage, the trial court declared the parties to be divorced, rather than granting the wife a divorce. The husband again appeals, challenging the trial court’s failure to find the wife at fault for the demise of the marriage, its designation of the wife as the children’s primary residential parent, the award of rehabilitative alimony, the property division, and the award of attorney fees in favor of the wife. We modify the award of alimony, but otherwise affirm the decision of the trial court.

Appellant, Tyrone Douglas, was placed on community corrections after his plea of guilty to the sale of less than .5 gram of cocaine in Davidson County. After the trial court found a violation of community corrections in 2011, Appellant was reinstated to community corrections on the condition that he complete a drug and mental health assessment and comply with any recommendations made in the assessment. Subsequently, another affidavit was filed alleging Appellant had violated the terms of his community corrections sentence by failing to attend required meetings with his case worker and pleading guilty to new charges. The trial court revoked Appellant’s community corrections sentence, reinstating Appellant’s sentence of thirteen years, to be served as a Persistent Offender at forty-five percent incarceration. Appellant appeals that revocation. After a review of the record, we determine that the trial court did not abuse it’s discretion. Therefore, we affirm the decision of the trial court.

Victor Armando Martinez (“the Defendant”) appeals his jury convictions for possession with intent to sell twenty-six or more grams of cocaine, simple possession of Alprazolam, possession with intent to sell one-half (1/2) ounce or more but less than ten pounds of marijuana, possession of a firearm in the commission of a dangerous felony, simple possession of diazepam, simple possession of 3,4-Methylenedioxymethamphetamine (“MDMA”), and misdemeanor possession of drug paraphernalia. On appeal, the Defendant asserts that the trial court erred in denying his motion to suppress the evidence obtained as a result of the search of his residence. He also alleges that the evidence presented at trial was insufficient to support his convictions. Finally, the Defendant contends that the trial court erred in applying no mitigating factors in its sentencing of the Defendant. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions and sentences.

Today's News

Legal News

Ford & Harrison to Move to Pinnacle Building

The Nashville office of labor law firm Ford & Harrison LLP is slated to move to The Pinnacle at Symphony Place by the end of January 2013. The firm currently operates from the Regus Business Center in the city's West End corridor. Mark Stamelos, the firm’s full-time partner in the Nashville office, said the convenience of the downtown location and space for expansion made the Pinnacle the right place for the firm. Read more in the Nashville Post

Rep. Hawk in Court for Arraignment

Tennessee Rep. David Hawk was in Greene County Criminal Court Friday to waive his arraignment. He was indicted by a grand jury last week and faces a felony reckless endangerment charge after an incident in March involving his estranged wife. "This has been a nightmare," Hawk said. "I strongly maintain my innocence in this situation." Judge John Duggar removed himself from the case because he knows Hawk and works with his wife. Hawk will be back in court on May 30, by which time the state Supreme Court will have decided which judge will hear the case. WCYB.com has the story

General Assembly News

Support Growing to End Campaign Donation Limits

Tom Humphrey writes in Knoxnews.com that legislators are moving toward repeal of campaign contribution limits while requiring more rapid and complete disclosure. House Republican Caucus Chairman Glen Casada said the concept is at the core of a "comprehensive" revision of state campaign finance law he and Senate Republican Caucus Chairman Bill Ketron hope to introduce when the General Assembly reconvenes. On the Democratic side, Senate Minority Leader Jim Kyle recently said the time has come to "re-think" past support of contribution limits because they are no longer effective. Even Common Cause of Tennessee, which has been a staunch advocate of contribution limits, has "almost come to the conclusion" that ending limits but providing fuller disclosure “would be appropriate.”

Upcoming

MBA Annual Meeting Set for Thursday

The Memphis Bar Association will hold its annual meeting this Thursday with keynote speaker Manassas High School Coach Bill Courtney, the subject of the Oscar-winning documentary “Undefeated.” In addition, the gavel will pass to 2013 President Linda Warren Seely, and the 2013 board of directors will be announced. Finally, several awards will be presented: Lewis Donelson will be honored with the 2012 Judge Jerome Turner Lawyer’s Lawyer Award, and the Sam A. Myar award will be given to Marcy Magee. The event takes place in the ballroom of the Holiday Inn on Central Ave. Tickets are $40 per person. Reserve your seat online or contact Charlotte Gean at (901) 527-3574 or ckgean@memphisbar.org for details.

Passages

Services Tuesday, Wednesday for Memphis Lawyer

Memphis attorney Anthony Harold D. Archibald Sr., 63, died Nov. 30. A 1974 graduate of the University of Tennessee College of Law, Archibald began practicing law shortly thereafter with the firm of Archibald & Halmon PC. Visitation will be from 5 to 7 p.m. Tuesday at MJ Edwards Funeral Home, 1165 Airways. Funeral services will be Wednesday at 11 a.m. at the Midtown Church of Christ, 1930 Union Ave.

Retired Vandy Law Prof Dies

Donald J. Hall, a celebrated professor of criminal law, who served on Vanderbilt’s law faculty from 1970 until his retirement in 2007, died Nov. 29 at the age of 69. Well regarded by students and colleagues, Hall was the author of a national casebook on criminal procedure, held the Vanderbilt University Chair for Teaching Excellence in 1994 and served as the law school’s associate dean from 1979 to 1984. He also coached the school’s national moot court team for many years and mentored generations of students. Hall was active outside the university setting as well, serving as chair of the state Ethics Commission, co-chair of the Tennessee Commission on Gender Fairness, a member of the Tennessee Sentencing Commission, and a member of the Governor's Commission on Juvenile Justice Reform and the Governor's Task Force on the Use of Enhancement Factors in Criminal Sentencing. In lieu of flowers, memorials may be directed to Family and Children’s Center of Nashville, the Donald J. Hall Scholarship Fund at Vanderbilt Law School or to a charitable organization of the donor’s choice. Read more from the school

TBA Member Services

Collateral Source Rule Examined in New TBJ

In the December Tennessee Bar Journal, Nashville lawyer Bill Walton writes why he believes the Collateral Source Rule should probably be reexamined. President Jackie Dixon talks with some former lawyer-legislators and studies the sacrifice a person makes to run for office, but also the need for more lawyers to serve. There is a lot more in this issue, including civil jury trials, banking and estate planning. Read it online or look in the stack of your weekend mail for the printed copy.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.